'Furious' echoes in CIA-Senate spat

The court battle over the House’s investigation of Operation Fast and Furious and the new showdown between the CIA and its Senate overseers have something in common: aggressive executive branch claims for secrecy.

At the core of both fights are bold assertions from President Barack Obama’s administration that agencies like the CIA and the Justice Department have the legal right to put some of their internal communications beyond the reach of Congress — even though it funds those agencies, writes the laws they’re supposed to obey and has a responsibility to monitor how they operate.

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While the Obama lawyers’ claims are not wildly different than some made by the George W. Bush and Bill Clinton administrations, many legal experts say Obama’s secretive stance is sharply at odds with vows he made on the campaign trail — a reminder of how difficult it is to rein in the power of the presidency, even when a candidate promises to do it.

“What strikes me as ironic is that this administration is picking up the cudgels of all these tired old shibboleths about executive privilege,” former House Counsel Stan Brand said. “It pains me to say this, but it’s Nixonian in its reach.”

High-profile fights over executive privilege in recent memory have usually broken out over White House records, especially those involving advice to top presidential aides or the president himself. But the disagreement that triggered the new conflict between the CIA and the Senate Intelligence Committee was not about White House records — it centered on internal CIA analyses of records of its Bush-era interrogation efforts.

In a letter to the Senate written last month and made public Tuesday, CIA Director John Brennan said those summaries should have been off-limits to congressional investigators.

“These documents were not created as part of the program that is the subject of the Committee’s oversight, but rather were written in connection with the CIA’s response to the oversight inquiry. They include a banner making clear that they are privileged, deliberative, pre-decisional CIA documents, to include attorney-client and attorney work product,” Brennan wrote. “The Executive branch has long had substantial separation of powers concerns about congressional access to this kind of material.”

Brennan’s argument is virtually identical to one the Justice Department and ultimately, Obama himself leveled in response to a House committee’s demand for records relating to Fast and Furious, a Bureau of Alcohol, Tobacco, Firearms and Explosives operation that may have allowed as many as 2,000 weapons to flow to Mexican drug cartels.

The Obama administration turned over thousands of pages related to the operation, but drew the line at certain records showing how it responded to congressional and media inquiries. That refusal led to a pair of House votes holding Attorney General Eric Holder in contempt of Congress. A federal judge is now mulling a House-filed lawsuit seeking to force Holder to turn over the records.

Oversight Committee Chairman Darrell Issa said Wednesday that the administration’s contention in the CIA fight “appears to be the same unprecedented claim” he’s been hearing from the Justice Department for nearly two years in the Fast and Furious faceoff.

“The Obama administration’s argument is that even when the Executive Branch gives Congress false information or otherwise acts inappropriately, as long as it occurred in the course of responding to Congress, it shouldn’t have to reveal the full truth,” said Issa. “Their argument is a dangerous attempt to expand the reach of Executive Privilege to cover abuses within agencies – even if they are well below the level of the President himself.”

In an interview last May, Issa said he generally believes the executive branch should be entitled to private communications, but not when some misconduct appears to have taken place.

“I’m one of those people that very strongly supports that the deliberative process in the ordinary course is not something that we should be asking for,” he told NBC’s “Meet The Press.” “But…when people make a decision to give us something that’s false and it’s shown to be false, and then particularly if there’s false statements to Congress, of course we have an obligation to look at it.”